Can an Arkansas firefighter who retired and draws a pension still serve as Fire Chief without losing benefits?

Plain-English summary

Senator Eddie Cheatham described a scenario familiar to small Arkansas cities: a firefighter retired in 2014 and started drawing pension benefits. The city kept him on as a paramedic with firefighting duties, then in 2017 made him Fire Chief and EMS Director. The city said it paid him as EMS Director but he served as Fire Chief on a volunteer basis because of his retirement status.

Three questions came back. The AG declined two of them. Questions 1 and 3 turned on the federal Fair Labor Standards Act's volunteer rules at 29 U.S.C. § 203(e)(4)(A), which says a public employee cannot be a "volunteer" for the same agency to perform "the same type of services" they're employed to do. That federal question was outside the AG's office's authority.

Question 2 was a state law question: was it proper for this person to serve as Fire Chief while drawing his firefighter pension? The answer was governed by Ark. Code Ann. § 24-11-818(f). That statute lets a retired firefighter "remain actively involved" in the fire department without losing pension benefits, but only "provided the person does not receive compensation for the service provided." If the city was paying him for the chief role, his pension benefits would have to be suspended. If he was truly volunteering as Fire Chief while drawing his EMS Director compensation only for that role, the pension could continue.

The AG noted in footnote 6 that the federal FLSA might require compensation for the time the retiree reportedly volunteered as Fire Chief, depending on the facts of his city employment and fire service. The AG declined to decide that federal question. Under the state-law analysis, pension benefits would be suspended if the retiree received compensation for his Fire Chief service.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Ark. Code Ann. § 24-11-818(f) is the key section. It carves out an exception to the general rule that pension benefits get suspended when a retiree returns to fire-department service. Subsection (f)(2) lets a retired firefighter "remain actively involved" in the department, and subsection (f)(3) protects pension benefits from suspension based on that involvement. The catch is in (f)(2): the person cannot "receive compensation for the service provided."

The statute's definition of "compensation" carves out two things that don't count: replacement of personal clothing or equipment destroyed during active service, and hospitalization insurance benefits. The opinion treats compensation for the continued fire-department service as grounds for suspension; it does not decide whether this retiree was compensated for Fire Chief service.

A separate statute, Ark. Code Ann. § 24-11-827, addresses the alternative path: a retiree returning to compensated employment can keep working but cannot draw pension benefits during that period.

The federal FLSA volunteer rule at 29 U.S.C. § 203(e)(4)(A) and 29 C.F.R. § 553.101 sets up a four-part test for when public-agency volunteer service is genuine. One element is that "such services are not the same type of services which the individual is employed to perform for such public agency." Department of Labor regulations define "same type of services" as "similar or identical services." 29 C.F.R. § 553.103(a). The AG did not decide whether the FLSA required compensation in the reported arrangement. Footnote 6 says it was possible, depending on the facts.

Common questions

Could a retired Arkansas firefighter serve as Fire Chief while drawing a pension? Yes, under § 24-11-818(f), but only on a strictly volunteer basis. Any compensation for the chief role would suspend pension benefits.

What counts as "compensation" for this purpose?
The opinion identifies two exclusions: replacement of personal clothing or equipment destroyed during active service, and hospitalization insurance benefits. It does not classify other particular forms of payment.

Could the same person be paid for one role and volunteer for another? The opinion did not decide whether the reported EMS Director and Fire Chief arrangement complied with the FLSA. Footnote 6 says the FLSA might require compensation for the allegedly volunteer Fire Chief time, depending on the facts.

Does the federal FLSA volunteer rule control over Arkansas's pension statute? The AG applied the state pension statute and declined to decide the FLSA issue. She said pension benefits would be suspended if the retiree received compensation for continued Fire Chief service; footnote 6 says federal law might require compensation, depending on the facts.

What happens if a retiree returns to paid fire-department work? Under Ark. Code Ann. § 24-11-827, the retiree could earn additional service credit (extending their eventual benefit), but pension benefits would not be paid during the period of compensated reemployment.

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STAT E OF ARKAN SAS
ATTORN EY G EN ERAL
LE SLIE RUTLED GE

Opinion No. 2017-087

November 15, 2017

The Honorable Eddie Cheatham
State Senator
2814 Ashley 239
Crossett, AR 71635-8824

Dear Senator Cheatham:

This is in response to your request for an opinion concerning a retired firefighter who reportedly is receiving benefits under the city's local pension fund while remaining active in the fire department as a volunteer. You pose the following questions, which I have paraphrased slightly:

1) If an individual's current duties involve the "same type of services" previously performed, does the individual qualify as a volunteer?

2) Would it be proper for the individual to serve as Fire Chief and EMS Director and draw a pension from the pension fund?

3) Would this be in conflict with 29 U.S.C. § 203(e)(4)(A), which concerns individuals who volunteer to perform services for public agencies?

As background for these questions, you state:

An individual retired from firefighting in 2014 and began drawing benefits from the city's firemen's pension trust fund. From April 2014 through January 2017, this retired individual was employed by the city reportedly as a paramedic, which included performing firefighter duties. In February 2017, this individual began to serve as Fire Chief and EMS Director. The city indicates he ts

323 C ENT ER STRE ET. SU ITE 200 · LI T TLE ROC K. ARK AN SAS 7220 1 TEL EPH O NE (501) 682-200 7 · FAX (501) 682-8084 A l"l. KAN SASAG .G O V
The Honorable Eddie Cheatham
State Senator
Opinion No. 2017-087
Page 2

compensated as the EMS Director and volunteers his time as Fire Chief due to his retirement status. Purportedly, he is performing the same duties as the previous Fire Chief and assumed more management and oversight of firefighting operations.

RESPONSE

Question 1 quotes and asks about the law cited in Question 3, which is a provision of the federal Fair Labor Standards Act (FLSA). 1 The application of this federal law under any given set of facts is outside the scope of an opinion from this office. I consequently cannot specifically opine on Questions 1 and 3. My analysis must focus instead on Question 2.

This question is governed by Ark. Code Ann. § 24-11-818(f) (Repl. 2014). This state law allows a retired firefighter to "remain actively involved" in the fire department and to continue receiving his pension benefits, as long he "does not receive compensation for the service provided." The answer to Question 2 thus depends upon whether the retired firefighter receives compensation for his service as Fire Chief.

DISCUSSION

As stated above, I cannot opine on your first and third questions because they turn on the specific application of the FLSA, which is a federal matter falling outside

1
This section of the FLSA addresses the circumstances under which individuals may volunteer services to a public agency without being compensated in accordance with the FLSA. It states that "[t]he term 'employee' does not include any individual who volunteers to perform services for a public agency" so long as two conditions are met: (1) "the individual receives no compensation or is paid expenses, reasonable benefits, or a nominal fee to perform services for which the individual volunteered"; and (2) "such services are not the same type of services which the individual is employed to perform for such public agency." 29 U.S.C. § 203(e)(4)(A) (2017). Under regulations promulgated by the U.S. Department of Labor, an individual will not qualify as a "volunteer" if he "is otherwise employed by the same public agency to perform the same type of services as those for which the individual proposes to volunteer." 29 C.F.R. § 553.101(d) (part of a four-part test for determining whether the FLSA allows a person to perform uncompensated services to a public agency on a "volunteer" basis). The phrase "same type of services" means "similar or identical services." 29 C.F.R. § 553.103(a). The Honorable Eddie Cheatham State Senator Opinion No. 2017-087 Page 3

the scope of an Attorney General's opinion. 2

Your second question is governed by Ark. Code Ann. § 24-11-818(f), which is part of the state law concerning local police and fire pension funds. This statute allows a retired firefighter to "remain actively involved" in the fire department and continue to receive his pension benefits, under certain prescribed circumstances:

(2) Notwithstanding the provisions of subsection (a) of this section or any other law to the contrary, a person retired from the service of a fire department may remain actively involved in the fire department, provided the person does not receive compensation for the service provided.

(3) Service to a fire department under subdivision (t)(2) of this section shall not cause any suspension of retirement benefits payable under § 24-11-801 et seq., nor shall such service be interpreted by any board administering funds under this subchapter as a reinstatement of employment in a fire department. 3

A firefighter who has retired and is receiving a local pension may therefore return to fire department service and continue to receive pension benefits. But the retired firefighter cannot "receive compensation" for this continued service, 4 and no additional service credit can be accumulated. 5 If the retired firefighter is in fact compensated for the services he provides while remaining involved with the

2
See Op. Att'y Gen. 2012-134 (and opinions cited therein) ("This office's opinions function does not ordinarily extend to questions of federal law, except as those questions involve or require the interpretation of state law."). 3 Ark. Code Ann.§ 24-11-818(f) (emphasis added).
4
"Compensation" for this purpose does not include "[a]ny money received by the retired firefighter for replacement of personal clothing or equipment destroyed during the performance of active service to a fire department" or "[a]ny expenditures ... on behalf of the retired firefighter for hospitalization insurance benefits." Id. at§ 24-11-818(f)(1). 5 Another statute allows a retired firefighter to return to compensated service and accrue additional service credit (i.e., return to employment in a position covered by the pension fund), but the firefighter cannot receive pension benefits during this reemployment. Ark. Code Ann. § 24-11-827 (Supp. 2015). The Honorable Eddie Cheatham State Senator Opinion No. 2017-087 Page 4

department, then such compensated service will "cause [a] suspension of retirement benefits ... ," in accordance with section 24-11-818(f)(3).

Thus, the answer to your second question depends upon whether the retired firefighter receives compensation for his service as Fire Chief. You state that the individual in question "volunteers his time as Fire Chief," which suggests that he is not compensated for that service. If that is the case, then this retired firefighter will satisfy section 24-11-818( f)' s requirement of uncompensated service and his pension benefits will continue.

Under the governing state law, there is cause for suspending benefits only if it is established that the retired firefighter receives compensation for his continued service to the fire department. 6 This follows from the plain language of section 24-1 l-818(f)(2), where it provides that a retired firefighter "may remain actively involved in the fire department, provided [he] does not receive compensation for the service provided." (Emphasis added).

Sincerely,

~~
LESLIE RUTLEDGE
Attorney General

6
The background submitted with your request indicates that the City has employed the retired firefighter in various capacities. The section of the FLSA cited in your third question-29 U.S.C.
§ 203(e)(4)(A)-could bear on whether the firefighter is compensated as an employee in his current capacity. This section states that "[t]he term 'employee' does not include any individual who volunteers to perform services for a public agency,'' so long as (1) "the individual receives no compensation or is paid expenses, reasonable benefits, or a nominal fee to perform services for which the individual volunteered"; and (2) "such services are not the same type of services which the individual is employed to perform for such public agency." I cannot opine on the FLSA's specific application. I can only note that depending upon the pa11icular facts surrounding the retired firefighter's employment with the City and his service as Fire Chief, it is possible that the FLSA requires compensation for the time you say he "volunteers."